William Robert DARE; Gary Petillo, Plaintiffs-Appellees, v. State of CALIFORNIA; Dept. of Motor Vehicles, Defendants-Appellants.
No. 97-56065.
United States Court of Appeals, Ninth Circuit.
Decided Sept. 16, 1999.
191 F.3d 1167
Argued and Submitted April 15, 1999.
Andrew R. Hall, Elizabeth Staggs-Wilson, Davis, Wright & Tremaine, Los Angeles, California, for the plaintiffs-appellees.
Mary H. Williams, Assistant Attorney General, Salem, Oregon, for the amicus curiae.
Opinion by Judge D.W. NELSON; Dissent by Judge FERNANDEZ.
D.W. NELSON, Circuit Judge:
This case involves a challenge under the Americans with Disabilities Act of 1990,
Facts and Procedural History
California has a comprehensive priority parking program for qualifying disabled individuals and veterans. See
Registered vehicle owners who are disabled themselves or who use their vehicles to transport disabled individuals at least 51% of the time can obtain disability license plates. California charges the standard license plate fees for these special plates. See id.
On August 13, 1996, Dare and Petillo, two disabled individuals, filed a class action lawsuit challenging California‘s $6 placard fee as a violation of ADA Title II and its promulgating regulations. Dare and Petillo allege that the fee constitutes an impermissible surcharge upon measures necessary to provide the nondiscriminatory treatment of individuals and groups required by the ADA. They rely on
[a] public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the costs of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual with the nondiscriminatory treatment required by the Act or this part.
The district court granted partial summary judgment with respect to the class of people qualifying as disabled under the ADA,1 found the fee to be an impermissible surcharge, and ordered a permanent injunction against California‘s imposition of the fee. California timely appeals.
Jurisdiction
We have jurisdiction pursuant to
Standard of Review
We review for abuse of discretion the district court‘s grant of a motion for a permanent injunction, see Gaudiya Vaishnava Soc. v. City of San Francisco, 952 F.2d 1059, 1062 (9th Cir. 1991), but review any determination underlying the grant of the motion by the standard that applies to that determination, see Multnomah Legal Servs. Workers Union v. Multnomah County Legal Aid Serv., 936 F.2d 1547, 1552 (9th Cir. 1991). We review de novo a
Discussion
This case raises two main issues: (1) Does California‘s $6 placard fee violate Title II of the ADA and its implementing regulations, and, if so, (2) was Congress‘s enactment of Title II of the ADA a valid exercise of its power under § 5 of the Fourteenth Amendment to abrogate California‘s Eleventh Amendment immunity from suit? Because we answer both of these questions in the affirmative, we affirm the district court‘s grant of partial summary judgment and a permanent injunction against imposition of the placard fee.
I. Violation of ADA Title II
Analyzing whether California‘s $6 placard fee violates the ADA requires three inquiries. First, what obligations does Title II impose upon states regarding fees for measures under the ADA? Second, does Public Law 100-641,
A. Obligation under Title II
In order to evaluate whether a fee constitutes a surcharge that violates Title II of the ADA, we conduct a two-part inquiry. First, as a threshold matter, we consider whether the measure for which California levies the fee is “required to provide that individual or group nondiscriminatory treatment” as mandated by the ADA.
Second, we evaluate whether the fee for the measure is a surcharge; in other words, we consider whether it constitutes a charge that nondisabled people would not incur. If nondisabled people pay the same fee for an equivalent service, the charge to disabled people would not constitute a surcharge on a “required” measure. Thus, for example, a state can charge a fee for disabled license plates so long as it charges the same fee for nondisabled license plates.
Because surcharges against disabled people constitute facial discrimination, the meaningful access test formulated by the Supreme Court in Alexander v. Choate, 469 U.S. 287, 301 (1985), does not apply. Under this test, a court considers whether the allegedly discriminatory measure prevents “meaningful access to the benefit that the grantee offers.” Id. at 301. The Ninth Circuit has applied this test in the ADA context to evaluating whether facially neutral laws violate
Using this standard in the context of facially discriminatory laws, however, would ignore the clear language of Title II. Cf. Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 F.3d 725, 733-35 (9th Cir. 1999) (holding that the reasonable modifications test does not apply to facially discriminatory laws because they present per se
B. Effect of Public Law 100-641
The government urges us to view Public Law 100-641 and the regulations promulgated pursuant to it as justifying the placards surcharge. On November 9, 1988, prior to the passage of the ADA, Congress enacted Public Law 100-641,
Pursuant to Public Law 100-641, the Department of Transportation (DOT) promulgated regulations in March 1991, eight months after Congress enacted the ADA. The DOT regulations provide in pertinent part that:
Special license plates, removable windshield placards, or temporary removable windshield placards displaying the International Symbol of Access shall be the only recognized means of identifying vehicles permitted to utilize parking spaces reserved for persons with disabilities which limit or impair the ability to walk.
The government‘s argument fails, however, because Public Law 100-641 is purely hortatory. See McGarry, 7 F.Supp.2d at 1026. Congress enacted Public Law 100-641 two years before the ADA and the law has no enforcement mechanism. Even California concedes that in recognizing principles of federalism and state sovereignty, Congress rendered state compliance with Public Law 100-641 completely voluntary.
In contrast, the ADA expressly applies to the states through Congress‘s Fourteenth Amendment powers, as discussed in more detail in Part II. Regulations promulgated pursuant to the ADA bind states so long as the regulations are not arbitrary, capricious, or contrary to the ADA. See Does 1-5 v. Chandler, 83 F.3d 1150, 1153 (9th Cir. 1996). As discussed below,
C. Application to the California Fees
Applying this approach to the California fee at issue, we find the fee to be a surcharge for a required measure in violation of the ADA. The ADA requires special parking arrangements such as handicapped parking spaces. These spaces allow disabled people equal access to public buildings in which California provides services, programs, and activities. Because California polices handicapped parking spaces, disabled people need placards or license plates to use them. California thus meets the ADA‘s requirement for nondiscriminatory access to public buildings by providing disabled people with placards and license plates.
Because providing the placards is a required measure under California‘s current program of providing access to handicapped parking spaces, we turn to the question of whether charging the fee for them constitutes a forbidden surcharge. This issue hinges on whether California provides the same fee for an equivalent service for nondisabled people. In support of such equivalence, the appellees argue that the placard fee is comparable to, and probably less than, charges nondisabled people accrue at parking meters. California thus claims that if the $6 fee is viewed as a partial payment of waived meter fees, then disabled people are not being charged more than other people.
California‘s argument fails, however, because many public places do not have parking meters and people who lack disabilities face no fees in parking at those places. Such a distinction is unacceptable. Charging disabled people for parking that would otherwise be free constitutes discrimination in the provision of access to public buildings, a measure required under the ADA. We thus affirm the district court on this issue and hold that California‘s fee for handicapped parking placards violates the ADA.
II. Constitutionality
Having established an ADA violation, we turn to the constitutional issues raised by the government. This Circuit has held that in enacting Title II of the ADA, Congress validly abrogated state sovereign immunity pursuant to its Fourteenth Amendment powers. See Clark v. California, 123 F.3d 1267, 1270-71 (9th Cir. 1997). The majority of Circuits addressing this issue have followed this Circuit‘s approach in Clark.2
We continue to adhere to our holding in Clark today. In light of the Supreme
A. Eleventh Amendment
1. Title II of the ADA
When Congress both expresses unequivocal intent to abrogate immunity and also acts pursuant to its § 5 powers, a state‘s immunity is waived. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 55 (1996); Clark, 123 F.3d at 1269. As noted in Clark, “Congress has unequivocally expressed its intent to abrogate the State‘s immunity under ... the ADA,” Clark, 123 F.3d at 1269. The focus of our discussion is therefore on why Title II constitutes a valid exercise of Congress‘s powers under § 5 of the Fourteenth Amendment.
The Court‘s recent decision in Florida Prepaid clarifies the congruence and proportionality test outlined in City of Boerne v. Flores, 521 U.S. 507 (1997). The first step of this test involves identification of the “Fourteenth Amendment ‘evil’ or ‘wrong’ that Congress intended to remedy,” using historical experience as a reference point. Florida Prepaid, 527 U.S. at 639 (quoting City of Boerne, 521 U.S. at 525). The second step requires consideration of whether the provisions of the statute are proportional to their remedial or preventive goal. See id. at 639 (quoting City of Boerne, 521 U.S. at 532).
Before applying this test to Title II of the ADA, we note that Congress‘s enforcement authority is at its apex when fashioning remedies aimed at the core Fourteenth Amendment guarantee of Equal Protection. City of Boerne and Florida Prepaid both emphasized Congress‘s power in dealing with discrimination, such as in the voting rights context. See Florida Prepaid, 527 U.S. at 639-40; City of Boerne, 521 U.S. at 525-27. The Court explained that “[l]egislation which deters or remedies constitutional violations can fall within the sweep of Congress’ enforcement power even if in the process it prohibits conduct which is not itself unconstitutional and intrudes into legislative sphere of autonomy previously reserved to the States.” Florida Prepaid, 527 U.S. at 638 (quotation omitted); City of Boerne, 521 U.S. at 518 (internal quotation omitted).
a. Congruence
Although disabled people do not constitute a suspect class, the Equal Protection Clause prohibits irrational and invidious discrimination against them. See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). When it enacted the ADA, Congress made specific factual findings of arbitrary and invidious discrimination against the disabled. See id.
Having established the ADA‘s congruence with Congress‘s power to enforce the Equal Protection Clause, we turn to proportionality. In so doing, we reiterate the importance of deference to Congress in this analysis.4 The Supreme Court has specifically found protections for people with disabilities to be an area in which Congressional judgment should be given great deference. See City of Cleburne, 473 U.S. at 442-43.5 The ADA is thus an appropriate exercise of § 5 powers if Congress enacted it in response to a widespread problem of unconstitutional discrimination that includes state programs and services and if the ADA‘s provisions are proportional to the scope of that discrimination.6
As noted above, Congress made extensive factual findings regarding the widespread arbitrary and invidious discrimination which disabled people face. See
We thus agree with the Second Circuit and hold that “[i]n light of Congress‘s findings of the extent of discrimination against people with disabilities and with due regard to the deference owed to Congress in making such judgments, we will not second-guess Congress‘s judgment that the ADA was targeted to remedy and prevent irrational discrimination against people with disabilities.” Muller, 187 F.3d at 309. Congress‘s findings were sufficiently extensive and related to the ADA‘s provisions that the provisions can “be understood as responsive to or designed to prevent, unconstitutional behavior.” Florida Prepaid, 527 U.S. at 646 (quoting City of Boerne, 521 U.S. at 532). Therefore, we hold that the ADA was a congruent and proportional exercise of Congress‘s enforcement powers under § 5 of the Fourteenth Amendment that abrogated Eleventh Amendment immunity.
2. Acceptability of 28 C.F.R. § 35.130(f)
Although California acknowledges the constitutionality of Title II of the ADA, it claims that the prohibition in
The primary flaw in the government‘s approach is that it conducts its Fourteenth Amendment analysis in a
Here, the regulation is not arbitrary, capricious, or contrary to the ADA. See id. Title II protects the rights of disabled people to have the same public services, programs, and activities as those who are not disabled. See
Forbidding such additional charges is a solution aimed at preventing this type of discrimination; it addresses the improper approach to funding services for the disabled, see
B. Tenth Amendment
Because Title II falls within Congress‘s Fourteenth Amendment powers, it does not conflict with powers reserved to the states under the Tenth Amendment. See Ex parte Virginia, 100 U.S. 339, 344-47 (1879); see also Armstrong v. Wilson, 124 F.3d 1019, 1024-25 (9th Cir. 1997). We thus hold that the ADA does not violate the Tenth Amendment.
Conclusion
The California placard fee violates the ADA and its implementing regulations. Because the ADA constitutes an appropriate exercise of Congress‘s enforcement powers under § 5 of the Fourteenth Amendment, California‘s Tenth and Eleventh Amendment challenges fail. Furthermore, we accord
AFFIRMED.
Because I cannot agree that the small fee California charges for placards violates the ADA, I dissent.
California has sought to ameliorate the parking problems that those with disabilities can face when they use automobiles to attend to business, recreation or any of the other pursuits of daily life. To that end, special parking places are set aside and marked for the sole use of disabled people. See, e.g.,
Under California law, a disabled person who owns a motor vehicle can obtain a license plate, which contains a special symbol—the International Symbol of Access, “commonly known as the wheelchair symbol.”
California, however, also decided to add more flexibility to the program. It recognized that many disabled persons may be driven by others, who do not do so fifty-one percent of the time, and that it would be beneficial if the other person‘s automobile could also be parked in the special parking spaces when a disabled person was transported. Therefore, California provided for the issuance of special placards, which are portable and can be used in any automobile that is being driven or utilized by a disabled person. See
That statute, as relevant here, provides that “Subject to the provisions of this sub-
The United States Department of Justice is responsible for interpreting and implementing that provision of the ADA. See
The dispute in this case is over whether California has violated a DOJ regulation, which provides that:
A public entity may not place a surcharge on a particular individual with a disability or any group of individuals with disabilities to cover the cost of measures, such as the provision of auxiliary aids or program accessibility, that are required to provide that individual or group with the nondiscriminatory treatment required by the Act or this part.
Certainly, California has not, in as many words, excluded disabled persons from any program generally offered to the public. If a failure to make special parking places available could be said to exclude them from the use of some other program, California has not failed to provide for the spaces themselves. No doubt the spaces are available in the sense that they have been set aside. California, however, has sought to assure that those who are not disabled will not use the spaces. No doubt, its method of doing so can inhibit use by a disabled person because the only rational way to provide the extra assurance is to police usage by placing some sort of special symbol on the parked automobile. Even that is not a perfect solution, of course, because people could use counterfeit permits or otherwise abuse the program. See
Under the ADA, as it relates to the issues before us, the most that California is required to do is make accessible parking places available at public facilities. See
Nothing in the law requires that California police usage of the spaces in order to assure that only disabled people are taking advantage of them. Indeed, if the federal government decided that usage must be policed by the states, that would come at least parlously close to an attempt to “commandeer state government” into enforcing a federal government policy at state cost. See Printz, 521 U.S. at 927. No doubt the provision of spaces has many costs, not the least of which is the expense of setting aside and signing special spaces, perhaps larger than normal, which may go unutilized a good part of the time, and which surely have less usage than other parking spaces. I,
California has also accepted the cost, if any, of issuing special license plates for disabled persons who have their own vehicles, which need to be parked, as well as for those who transport disabled people most of the time. See, e.g.,
As it is, California has decided to confer upon disabled people the still further benefit of a system under which they can drive or be driven in any automobile at all, and still use the special parking places, as well as take advantage of other special parking benefits. That is, California did set up an optional flexible placard program. That complemented the already optional enforcement program which was designed to assure that spaces would not only be provided, but also that they would remain available. As I see it, nothing in the ADA or the regulations precludes California from making a small charge for those additional benefits.
I, of course, recognize that a disabled person can argue that he does not really care at all about having a vigorous enforcement program, which greatly enhances the opportunities of all disabled people to use the special parking places, and even helps make it possible to confer still further parking privileges upon them. In other words, a disabled person could say, “Fine, just set aside and mark the spaces, but do not force any additional benefits upon me, even at a nominal cost.” I do not see any reason to believe that Congress did, or that California or we need to, take that kind of reasoning seriously.
Moreover, I fail to see how a charge of twenty-five cents per month, which accords all of those benefits above and beyond the bare provision of spaces, can be dubbed a violation of the ADA on the theory that the costs of state programs that are required to preclude discriminatory treatment have been placed upon disabled persons. No cost of a generally available program has been so levied; rather an expanded ability to use the special parking spaces has been afforded. With or without enhancement, the spaces remain, and even they are one step removed from any particular state program as such.
In short, the placard enhancement allows for great flexibility in the use of the special spaces, affords even further parking opportunities, and helps assure that the spaces will actually be available for those who need them. The fact that a disabled person, who does not have a car of his own or a car which is used for disabled people most of the time, needs to pay what amounts to twenty-five cents per month to be able to use the special spaces does not put the cost of the parking space program upon him; it only visits a minute
That being said, what of the district court cases which are to the contrary? See Thompson v. Colorado, 29 F.Supp.2d 1226, 1231-32 (D.Colo.1998); Duprey v. Connecticut, 28 F.Supp.2d 702, 709-11 (D.Conn.1998); Thrope v. Ohio, 19 F.Supp.2d 816, 824-25 (S.D.Ohio 1998); McGarry v. Director, Dept. of Revenue, 7 F.Supp.2d 1022, 1027-29 (W.D.Mo.1998). Those cases appear to presume either that some form of enforcement is required, or that the state has chosen to enhance the availability of spaces and that is the state‘s problem. See, e.g., Thompson, 29 F.Supp.2d at 1232; Duprey, 28 F.Supp.2d at 709. As already noted, I see no violation centered on the fact that a state has exacted a small charge for the purpose of enhancing the benefits available to disabled persons beyond those absolutely required by law. I, therefore, do not accept that particular form of reasoning. The district court cases also note that without placards the program could not be as flexible as it is because, for example, a disabled person who is being driven in another person‘s car could not confer the right to park in a special space upon the driver. See, e.g., Thrope, 19 F.Supp.2d at 825; McGarry, 7 F.Supp.2d at 1028. Moreover, they say, a disabled person may wish to rent or borrow a car, which did not have a special license plate, and would not have access to a special space in that instance. And, they say, free license plates do not help in those regards.1 See id. Again, that puts the cart before the horse. It assumes that the state must not only make spaces available, but also provide for all possible permutations of desire to use those spaces, without asking for any fee to help defray the cost of the enhanced usage possibilities. I see no persuasive basis for that assumption. It simply fails to recognize that the states are not discriminating against disabled people when they undertake to police the use of spaces, nor are they discriminating when they ask for a small fee to enable them to do that policing in an efficient fashion. There is, by the way, nothing before us to suggest that the fee exceeds that which the DMV charges other people for services it performs for them, or that the fee is in an excessive or discriminatory amount whose design injures disabled people. Far from it. The fee does not even cover the cost of issuing the placards.2
In fine, the ADA is an anodyne which serves to assuage some of the sufferings of disabled persons. California does not disagree with that general goal, and insists that it did not deprive disabled persons of any rights when it imposed a nominal fee upon those who sought to obtain parking placards, which provide great flexibility in the use of the special parking spaces that California has already made available. I agree with that assessment of the situation, and determine that the district court abused its discretion when it issued the permanent injunction against the DMV.
In reaching my conclusion, I limit myself to the facts at hand—a fee that comes to twenty-five cents per month to help defray the cost of issuing the placard. I do not reflect upon whether the state could charge a vastly greater sum for the placards. Nor do I consider other programs or fees charged for them. Nor, for that matter, do I consider whether the federal
Thus, I respectfully dissent.
Notes
[b]ecause the Department [of Justice] is the agency directed by Congress to issue regulations implementing Title II, its views warrant respect. We need not inquire whether the degree of deference described in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984), is in order; “[i]t is enough to observe that the well-reasoned views of the agencies implementing a statute ‘constitute a body of experience and informed judgement to which courts and litigants may properly resort for guidance.‘”Olmstead, 527 U.S. at 598 (quoting Bragdon v. Abbott, 524 U.S. 624, 642 (1998)). In taking this approach, we reject the reasoning of the Fourth Circuit in Brown, which determined that “separation of powers, administrability, and federalism” required an examination of “the legality of the specific statute and regulation whose asserted violation by the state government gave rise to the claim for relief in federal court.” Brown, 166 F.3d at 705. In our view, a piecemeal analysis of the regulations would unduly constrain Congress‘s power to construct a statutory scheme addressing discrimination; the federal courts, in effect, would have a line-item veto over legislation directed at intentional or arbitrary discrimination by the states.